Barry Sussman's Blog

Barry Scott Sussman- Born and raised in New Jersey. Graduated from Rutgers University with a BA in Sociology. Graduated with a JD from the Benjamin Cardozo School of Law specializing in Federal Criminal Procedure and Federal Prosecutorial Misconduct. Worked as a legal commentator during the Clinton impeachment debacle helping educate the public about federal prosecutors and their outrageous abuse of power. Active in the field of credit and collections for over 30 years before a federal trial, conviction and subsequent imprisonment. Now an outspoken critic of the United States Department of Justice and its proclivity towards mass incarceration. Current criminal justice editor at OPC Global, www.onlinepublishingcompany.info.

AARON SWARTZ AND THE SOCIOPATHY OF FEDERAL PROSECUTORS

The tragic death of Reddit co-founder Aaron Swartz has elicited a plethora of articles highlighting federal prosecutorial bullying, overreaching and abuse. While timely and well-intended, most of these articles fail to discuss the ubiquitousness of the pernicious tactics employed in this matter. Sadly, Swartz’s case is far from unique and is in many ways an ordinary example of how federal prosecutors ply their trade.

There appears to be little doubt that the actions of the federal prosecutors were the proximate cause of Swartz’s suicide. Swartz had been charged with wire fraud, computer fraud and other charges related to his alleged hacking of millions of academic articles from a digital archive at MIT. Swartz had previously pleaded not guilty to the charges and was preparing for a trial scheduled to commence later this year. Even though he had not caused any damage or profited from the alleged offense, Swartz faced decades in prison and millions of dollars in fines. Ironically, the database accessed by Swartz voluntarily released over 4.5 million articles just two days before his death.

Aaron Swartz was overwhelmed by prosecutors’ grossly exaggerated claims, as well as the threat of spending decades in federal prison

Much of what troubled Swartz was the prosecutors’ inability or refusal to weigh the equities in his matter. From the time charges were initially filed, the government continuously cast Swartz in as negative a light as possible. Swartz supporter and founder of Creative Commons, Lawrence Lessig, recognized the prosecutors’ mendacity and strongly criticized their actions. “From the beginning, the government worked as hard as it could to characterize what Aaron did in the most extreme and absurd way. The ‘property’ Aaron had ‘stolen,’ we were told, was worth ‘millions of dollars’ – with the hint, and then the suggestion, that his aim must have been to profit from his crime. But anyone who says that there is money to be made in a stash of academic articles is either an idiot or a liar. It was clear what this was not, yet our government continued to push as if it had caught the 9/11 terrorists red-handed.”

Lessig’s superfluous reference to 9/11 has more relevance to the matter than he may imagine. Enhanced prosecutorial tools resulting from the 9/11 attacks have been routinely employed in cases having absolutely no connection to terrorism. Federal prosecutors, feigning an inability to do otherwise, often claim that they are duty bound to use all available prosecutorial tools at their disposal. The result is that defendants like Swartz are forced to face the full fury of the Department of Justice (DOJ) for relatively innocuous offenses.

The 9/11 attacks vested federal prosecutors with extraordinary powers to fight terrorists. They have been routinely used in relatively benign matters

Additionally, the very structure of the U.S attorney’s office encourages defendants like Swartz to be depicted as negatively as possible, even if it is, as Lessig observed, in a “most extreme and absurd way.” The more seriously the crime can be depicted, the more significant the prosecution. Thus, prosecutors looking to fast track their careers and move quickly up the judicial corporate ladder have added incentive to mischaracterize and embellish. There is simply no reward for accurately portraying the alleged crimes of the accused.

It is likely that these repeated and harsh mischaracterizations of Swartz’s alleged offense added greatly to the pressure he was under. From all accounts, Swartz was a thoughtful and sensitive young man who had probably never encountered an entity as thoroughly devoid of decency as the DOJ. His odyssey through the federal criminal justice system likely revealed an evil of which most are blissfully unaware. That it was elements within his own government employing such extraordinary means against him could have only added to Swartz’s level of fear and frustration.

The DOJ continues to make mountains out of molehills while avoiding serious scrutiny

U.S. Attorney Carmen Ortiz announced Swartz’s indictment in July of 2011 with typical prosecutorial glee and zeal. Swartz was precisely the kind of high profile defendant federal prosecutors seek, newsworthy and guaranteed to generate self-serving publicity. “Stealing is stealing, whether you use a computer command or a crowbar, and whether you take documents, data or dollars. It is equally harmful to the victim whether you sell what you have stolen or give it away."

Ortiz’s position on the case grew more ridiculous as the case dragged on. Unhappy with Swartz’s failure to accept the government’s proposed plea bargain, additional charges were added through a superseding indictment. This is a relatively common tactic employed by federal prosecutors and is often an effective mechanism by which to extract guilty pleas. Defendants are told that their opportunity to plead to the initial charges will expire if not quickly acted upon and that additional, more severe charges will be filed if they insist upon their constitutionally guaranteed right to trial. This tactic increased the total counts faced by Swartz to 15 and raised his potential sentence to 50+ years and a fine in the neighborhood of $4 million.

U.S. Attorney Carmen Ortiz hounded Swartz into his grave with scurrilous and exaggerated claims of wrongdoing

AUSA Stephen Heymann maintained Ortiz’s hard line. Heymann and Ortiz recognized Swartz’s high profile and were determined to milk the matter for all they could. A reasonable plea accurately reflecting the relatively harmless nature of the offense would only serve to diminish the significance of the prosecution. The Wall Street Journal reported this week that two days before Swartz killed himself, federal prosecutors rejected a plea offer from Swartz's lawyers that would have kept him out of prison. They instead demanded that he "would need to plead guilty to every count" and made clear that "the government would insist on prison time.” The prosecutors’ intransigence made trial, and a lengthy prison sentence if convicted, a virtual inevitability.

So what is it that drives such destructive behavior? How have supposed public servants veered so far off course? The desire to get ahead is hardly unique. Seeking career advancement and being willing to cut a few corners in order to do so is seen in numerous fields and can hardly be viewed as being the exclusive domain of federal prosecutors. There is something significantly more insidious at work in these matters.

A powerful signifier of sociopathy is a lack of empathy, which has become a virtual hallmark of federal prosecutors. Yet there is something unique about the type of sociopathy often displayed by federal prosecutors because it is accompanied by an inflexibility and certitude often found in religious dogma. This flows from a visceral conviction that they are doing God’s work on earth and are empowered to courageously battle all perceived evil. Federal prosecutors often employ an infantile Manichean view of the world in which people either wear white hats or black hats. Once the initial determination is made that one is on the side of “evil,” reasonableness is, by design, removed from the equation. The specifics of the charges are of no moment; mitigating factors are ignored. The accused must be punished to the fullest extent allowed by law.

There is also a persistent belief that if they look hard enough, prosecutors will find “something.” Rarely, if ever, will federal prosecutors concede that a defendant is innocent, or that charges should not have been brought. According to the Diagnostic and Statistical Manual, the definitive reference source for psychiatry, the inability to admit error is another indicator of sociopathic behavior. Even in cases of documented false conviction, prosecutors typically insist upon the defendant’s guilt and attribute any legal reversal to “technicalities.”

Prosecutors’ inability to admit error is identified in the DSM as an indicator of sociopathy

Add into the mix the additional elements of self-serving career advancement, a public easily manipulated into demanding harsher sentences for all perceived transgressions and a legal playing field that increasingly favors the prosecution, and you have a perfect storm of unchecked power and rampant abuse. It can hardly be a surprise that a defendant like Swartz, fighting the full force of the United States federal government, would find himself mentally overwhelmed and unable to continue his battle.

Interestingly, the decision to target Swartz likely preceded the alleged charges that lead to his suicide. In 2009, Swartz drew attention from the FBI after he legally downloaded about 20 million pages of legal documents from the federal courts and distributed them free across the internet. This would be consistent with federal prosecutors’ practice of targeting people as opposed to crimes. The feds likely had Swartz in their sites for years and simply waited for the right opportunity to bring charges against him. The alleged hacking of the articles was likely merely a premise for bringing charges that had been anticipated all along.

In the aftermath of Swartz’s suicide, criticism of the prosecutors has been relentless. Ortiz and Heymann, who had previously seized upon all available opportunities to publicize the matter, have refused comment since Swartz’s death. Ortiz did, however, use her husband to voice her sociopathic lack of contrition. "Truly incredible that in their own son's obit they blame others for his death and make no mention of the six-month offer," said Ortiz’s husband, Thomas Dolan, apparently referring to an unconfirmed plea offer, in a Twitter message sent on Monday night.

Swartz’s family has been outspoken in their criticism of the prosecution. "Aaron's death is not simply a personal tragedy. It is the product of a criminal justice system rife with intimidation and prosecutorial overreach," Swartz's family wrote in a statement posted online. "Decisions made by officials in the Massachusetts U.S. Attorney's office and at MIT contributed to his death. The US Attorney's office pursued an exceptionally harsh array of charges, carrying potentially over 30 years in prison, to punish an alleged crime that had no victims. Meanwhile, unlike JSTOR, MIT refused to stand up for Aaron and its own community's most cherished principles."

MIT failed to support Swartz and played a yet to be determined role in his prosecution

Officials at MIT are attempting to distance themselves from Swartz’s prosecution. MIT President Rafael Reif, who was provost at the time of Swartz's alleged offense, has vowed to investigate MIT's role in Swartz's prosecution. "I want to express very clearly that I and all of us at MIT are extremely saddened by the death of this promising young man who touched the lives of so many," Reif wrote in a letter posted Sunday afternoon. "It pains me to think that MIT played any role in a series of events that have ended in tragedy."

MIT President Rafael Reif is attempting to deflect blame for Swartz’s suicide

Adding her voice to the chorus of criticism is retired USDJ Nancy Gertner, who served on the federal bench for 17 years. Gertner says she was troubled by much of what she learned and saw from the bench before leaving in 2011. She asserts that Ortiz should not have prosecuted Swartz. “Just because you can charge someone with a crime, just because a technical crime has been committed, doesn’t mean you should,” Gertner said.

“At the time of the indictment, [Ortiz] said, ‘Stealing is stealing.’ I saw that all the time when I was on the bench,” she said. “This is a classic line. Stealing an apple if you’re hungry is different than Bernie Madoff. It is obviously different.”

USDJ Nancy Gertner is a vocal critic of prosecutorial excesses

Most federal prosecutors would likely dispute that point. In their black and white universe, all evil must be punished. There is simply no need to discern between one type of stealing and another.

Gertner’s time on the bench offered her a clear insight into the inner workings of the U.S. attorney’s office and she is vociferous in her displeasure with what she saw. “What happens with the press, you don’t talk about the cases which really reflect this kind of poor judgment. You talk only about the cases that succeed,” Gertner said. “This is the example of bad judgment I saw too often.” When asked if she was referring to the bad judgment of Carmen Ortiz, Gertner pulled no punches and said, “That’s right.”

While the tragedy of Swartz’s death and their complicity in the matter is almost certainly lost on the prosecutors involved in the affair, others have been quick to lay blame directly upon Ortiz and Heymann. Swartz’s case has opened a veritable flood of criticism questioning the tactics, motives and judgment of federal prosecutors. The media has hitherto been too compliant, and ultimately complicit, in doing the bidding of federal prosecutors. Swartz’s tragic demise may ultimately cause a reexamination of how and why federal cases are prosecuted. Federal prosecutors may finally be subjected to a meaningful level of scrutiny and accountability. Reform of federal prosecutorial abuse would be a fitting legacy for Aaron Swartz.

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Comments

As public choice theory shows, so called non profit government agencies and agents have their own profit motives. You get bigger staffs and budgets by categorizing things as crimes or problems, or even by causing problems that need solving and inducing people to commit crimes. Ortiz career advancement requires prosecutions.

They need to lock away these sociopathic characters. It is not only federal prosecutors that are doing this it is all prosecutors. The city attorney in L.A uses the mental health courts to punish those who won't plea, and they add charges that are clearly false. This is not just a federal court problem.

God bless Nancy Gerntner. It is woefully unknown how rare she is. The media likes to make judges out as a wonderful bunch but they are failed lawyers and politicians, mostly. I witnessed a good 13 follow no law and act like nefarious cretins. Some may rise to the occasion and protect rights, but most will aim to satisfy the prosecutors and police. I'm guessing that it's good politics to please those whose votes might get you re-elected. You should look into the case of Judge Manuel Real. Judge Maria Stratton is a big fan of Manuel Real and that says much about former federal public defender, Maria Stratton. Keep writing, please.

I'm the sister you saw it the tape. So glad you are writing these fine articles. Prosecutorial misconduct is a cancer. Most are unaware of it. It destroys good people and it makes our country a joke. Very hard to write such things without foaming at the mouth. Kudos for your muscular and restrained presentation.